Latest news with #Kagan
Yahoo
28-05-2025
- Business
- Yahoo
Supreme Court exempts Fed from Trump firings
This story was originally published on Banking Dive. To receive daily news and insights, subscribe to our free daily Banking Dive newsletter. The Supreme Court last week exempted the Federal Reserve from its order granting the Trump administration's emergency request to uphold the firing of officials at the National Labor Relations Board and the Merit Systems Protection Board. The Fed 'is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States,' the majority wrote in Thursday's order. Justice Elena Kagan, joined in a dissenting opinion by Justices Sonia Sotomayor and Ketanji Brown Jackson, called the Fed exception 'out of the blue,' saying she was 'glad to hear it, and do not doubt the majority's intention to avoid imperiling the Fed.' But the exemption 'poses a puzzle,' because Fed independence 'rests on the same constitutional and analytic foundations' as other federal agencies, Kagan said. The Justice Department had asked for a stay on a D.C. Circuit Court order reinstating Gwynne Wilcox of the NLRB and Cathy Harris of the MSPB, both Democrats appointed by former President Joe Biden, after President Donald Trump removed them without cause earlier this year. While the case proceeds, the Supreme Court's order allows Wilcox and Harris' firings to stand – a move lower courts had blocked, citing precedent from Humphrey's Executor v. United States. In that 1935 case, the Supreme Court determined the president couldn't oust commission members before their terms expire, except for malfeasance or dereliction of duty. Fed governors, nominated by the president and confirmed by the Senate, serve 14-year terms, and Humphrey's undergirds the independence of the Fed, said Kathryn Judge, a Columbia University professor of law. Last week's decision suggests the court is poised to overturn or gut that precedent based on 'a very expansive reading of the nature of the executive power' that Article II of the Constitution gives the president, she said. The Supreme Court majority wrote that the stay of a district court's injunction 'reflects our judgment that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power,' and the president 'may remove without cause executive officers who exercise that power on his behalf.' Judge said the majority 'seems rightly fearful of the practical ramifications of undermining the central bank's independence. But in trying to placate markets by suggesting it will create an exception for the Federal Reserve, it also revealed how difficult it will be for the Court to devise a principled basis for distinguishing the Fed from other independent agencies.' In her dissent, Kagan lambasted the decision to create 'a bespoke Federal Reserve exception' and the convoluted reasoning it required. 'If the idea is to reassure the markets, a simpler — and more judicial — approach would have been to deny the President's application for a stay on the continued authority of Humphrey's,' she wrote. Even before Trump returned to the White House, questions circulated as to whether he would attempt to or could fire Fed Chair Jerome Powell, who the president was critical of during his first term. Powell indicated last month the Fed was closely monitoring the court case, although he didn't think the court's ruling in the case would apply to the Fed, Bloomberg reported. In November, Powell said such a move is 'not permitted under the law,' and he would not resign if Trump asked. His term as chair of the central bank expires in May 2026. Trump has waffled on his intentions to remove Powell, saying in April he never intended to fire the Fed chair. But he hasn't held back his criticism of Powell, who he has blasted repeatedly for not cutting interest rates. Lev Menand, a Columbia University law professor, called the Supreme Court majority's single-sentence reasoning related to the Fed 'threadbare and incoherent.' 'The more one looks at the Federal Reserve Board, the harder it is to escape the conclusion that there is no way to distinguish the Board from the other multimember commissions on which it is based,' he wrote in a white paper Friday. If there's an exemption for the Fed, 'then the justices need to identify where in the Constitution it says there is a different set of rules for the exercise of executive power over banks,' Menand wrote. 'Because, at the end of the day, that is what the Federal Reserve Board is: a bank regulator.' The Supreme Court's decision last week 'does not bode well' for the lawsuit filed by Todd Harper and Tanya Otsuka, the Democratic members of the National Credit Union Administration Trump fired in April, Judge said. That move left just one member on the regulator's board: Republican Chair Kyle Hauptman. Harper and Otsuka sued the president over what they called their 'patently unlawful removal[s].' Harper indicated earlier this month that he viewed the firings as part of a broader Trump administration strategy ultimately targeting the Federal Reserve, and reflective of a desire to dismantle independence held by federal financial regulators. 'There are strong arguments, based on the statutory scheme and the Supreme Court's traditional approach to separation of powers, that President Trump lacked the authority to remove them,' Judge said of Harper and Otsuka's case. 'The recent decision, however, makes it far less likely that they will prevail on the merits.' The majority deemed the stay appropriate 'to avoid the disruptive effect of the repeated removal and reinstatement of officers' while the case proceeds, and said a final decision on the NLRB and MSPB is better made after full briefing and argument.
Yahoo
24-05-2025
- Politics
- Yahoo
Opinion - The justices must at long last deal with ‘chronic injunctivitis'
This week, the Supreme Court continued to deliberate over what to do with the growing number of national or universal injunctions issued by federal district courts against the Trump Administration. The court has long failed to address the problem, and so-called 'chronic injunctivitis' is now raging across the court system. Justices have only worsened the condition with conflicting and at times incomprehensible opinions. Both Democratic and Republican presidents have long argued that federal judges are out of control in issuing national injunctions that freeze the entire executive branch for years on a given policy. For presidents, you have to effectively sweep the district courts 677-to-0 if you want to be able to carry out controversial measures. Any one judge can halt the entire government. Under President Barack Obama, Justice Elena Kagan expressed outrage over the injunctions in public comments at Northwestern University School of Law. Kagan lashed out at the obvious 'forum shopping' by then conservative advocates to get before favorable courts, insisting 'It just cannot be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for the years it takes to go through the normal [appellate] process.' In his first term, Trump faced a more than 450 percent increase in the number of such injunctions over the number issued under Obama — a rise from 12 to 64. The number then went down to just 14 under former President Joe Biden. With Trump back in office, district courts have now outstripped that record and may surpass the total from the first term in the first year. However, when the current case came up before the Supreme Court on one of the Trump injunctions, Kagan suggested that this was 'different,' because Trump was clearly wrong. In oral argument, Kagan snapped at the Solicitor General: 'Every court is ruling against you.' It was a curious point coming from a justice who had previously acknowledged that challengers were forum-shopping by going to favorable judges, as with the current cases coming out of largely blue states. Kagan did not explain where the line should be drawn, leading to speculation on when something would be viewed as 'just sorta wrong' or 'really, really wrong.' This week, the Supreme Court enjoined the Maine House of Representatives from denying State Representative Laurel Libby her right to speak and vote on the floor. In an outrageous action, the Democratic majority had effectively taken Libby's constituents hostage by telling her that, unless she apologized for identifying a transgender athlete in public comments, she could not vote. The Supreme Court voted 7-2 to lift the ban, with Kagan joining the more conservative justices. However, in her dissent, Justice Ketanji Brown Jackson (who has favored the injunctions in the Trump cases) stressed that there was no need for an injunction here because there were no 'significant legislative votes scheduled in the upcoming weeks' or where Libby's lack of a vote would 'impact the outcome.' It again left many scratching their heads on what Jackson would consider a 'significant vote.' Moreover, thousands of Maine residents have been denied representation on the state House floor. That would seem significant even if the justice did not find certain bills to be sufficiently weighty. These different approaches only deepen the uncertainly over the standards for lower courts. Just in case the Supreme Court doubted the need for greater clarity on the use of these injunctions, Boston District Judge Myong J. Joun, perfected the record this week. The Biden appointee had just been reversed by the Supreme Court last month when he issued a temporary restraining order that the Trump Administration to pay out frozen grants worth more than $65 million. The administration had raised questions about the basis for the grants and ordered a review. Usually, a temporary order freezes the parties from changing the status quo to allow for review. It is difficult to appeal such an order, and the parties generally wait for a couple of weeks to seek review after the court issues a preliminary injunction. But Judge Joun wanted to use the temporary restraining order to force the payments to happen, changing the status quo permanently. This did not seem like temporary relief, since money is not likely to come back after it is paid out. This week, Joun was back with another injunction. This time he enjoined an effort of Education Secretary Linda McMahon to initiate a reduction-in-force and prepare for the potential elimination of the Department of Education. Despite the false claims that Trump's underlying executive order actually shut down the department, it stated that McMahon should, 'to the maximum extent appropriate and permitted by law, take all necessary steps to facilitate the closure of the Department of Education.' While Joun admits that this was not a department shutdown, he still enjoined these efforts in an 88-page decision full of sweeping, dramatic language that sounds more like a policy paper than a restrained judicial order. The court simply declared that even a reduction in force would make it 'effectively impossible for the department to carry out its statutorily mandated functions.' Many on the left again celebrated a judge effectively micromanaging the executive branch. Michael Mann, a climate professor and senior administrator at the University of Pennsylvania, even seemed to add a threat — that 'If Trump doesn't comply, we're in second amendment territory.' Insurrection aside, it is clearly time for the Supreme Court to do something about this. Despite a majority of justices harrumphing for years about these injunctions, lower court judges continue to issue them with abandon. In the meantime, presidents like Trump are looking at two years of litigation before they can make meaningful changes, including downsizing the government. For the Supreme Court, it has become madness, as emergency motions pile up every morning after executive programs are frozen overnight. The solution to chronic injunctivitis is simple: You give district judges a dose of clarity and tell them not to call you in the morning. Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School, where he teaches a course on the Supreme Court and the Constitution. Copyright 2025 Nexstar Media, Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.
The Hill
24-05-2025
- Politics
- The Hill
The justices must at long last deal with ‘chronic injunctivitis'
This week, the Supreme Court continued to deliberate over what to do with the growing number of national or universal injunctions issued by federal district courts against the Trump Administration. The court has long failed to address the problem, and so-called 'chronic injunctivitis' is now raging across the court system. Justices have only worsened the condition with conflicting and at times incomprehensible opinions. Both Democratic and Republican presidents have long argued that federal judges are out of control in issuing national injunctions that freeze the entire executive branch for years on a given policy. For presidents, you have to effectively sweep the district courts 677-to-0 if you want to be able to carry out controversial measures. Any one judge can halt the entire government. Under President Barack Obama, Justice Elena Kagan expressed outrage over the injunctions in public comments at Northwestern University School of Law. Kagan lashed out at the obvious 'forum shopping' by then conservative advocates to get before favorable courts, insisting 'It just cannot be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for the years it takes to go through the normal [appellate] process.' In his first term, Trump faced a more than 450 percent increase in the number of such injunctions over the number issued under Obama — a rise from 12 to 64. The number then went down to just 14 under former President Joe Biden. With Trump back in office, district courts have now outstripped that record and may surpass the total from the first term in the first year. However, when the current case came up before the Supreme Court on one of the Trump injunctions, Kagan suggested that this was 'different,' because Trump was clearly wrong. In oral argument, Kagan snapped at the Solicitor General: 'Every court is ruling against you.' It was a curious point coming from a justice who had previously acknowledged that challengers were forum-shopping by going to favorable judges, as with the current cases coming out of largely blue states. Kagan did not explain where the line should be drawn, leading to speculation on when something would be viewed as 'just sorta wrong' or 'really, really wrong.' This week, the Supreme Court enjoined the Maine House of Representatives from denying State Representative Laurel Libby her right to speak and vote on the floor. In an outrageous action, the Democratic majority had effectively taken Libby's constituents hostage by telling her that, unless she apologized for identifying a transgender athlete in public comments, she could not vote. The Supreme Court voted 7-2 to lift the ban, with Kagan joining the more conservative justices. However, in her dissent, Justice Ketanji Brown Jackson (who has favored the injunctions in the Trump cases) stressed that there was no need for an injunction here because there were no 'significant legislative votes scheduled in the upcoming weeks' or where Libby's lack of a vote would 'impact the outcome.' It again left many scratching their heads on what Jackson would consider a 'significant vote.' Moreover, thousands of Maine residents have been denied representation on the state House floor. That would seem significant even if the justice did not find certain bills to be sufficiently weighty. These different approaches only deepen the uncertainly over the standards for lower courts. Just in case the Supreme Court doubted the need for greater clarity on the use of these injunctions, Boston District Judge Myong J. Joun, perfected the record this week. The Biden appointee had just been reversed by the Supreme Court last month when he issued a temporary restraining order that the Trump Administration to pay out frozen grants worth more than $65 million. The administration had raised questions about the basis for the grants and ordered a review. Usually, a temporary order freezes the parties from changing the status quo to allow for review. It is difficult to appeal such an order, and the parties generally wait for a couple of weeks to seek review after the court issues a preliminary injunction. But Judge Joun wanted to use the temporary restraining order to force the payments to happen, changing the status quo permanently. This did not seem like temporary relief, since money is not likely to come back after it is paid out. This week, Joun was back with another injunction. This time he enjoined an effort of Education Secretary Linda McMahon to initiate a reduction-in-force and prepare for the potential elimination of the Department of Education. Despite the false claims that Trump's underlying executive order actually shut down the department, it stated that McMahon should, 'to the maximum extent appropriate and permitted by law, take all necessary steps to facilitate the closure of the Department of Education.' While Joun admits that this was not a department shutdown, he still enjoined these efforts in an 88-page decision full of sweeping, dramatic language that sounds more like a policy paper than a restrained judicial order. The court simply declared that even a reduction in force would make it 'effectively impossible for the department to carry out its statutorily mandated functions.' Many on the left again celebrated a judge effectively micromanaging the executive branch. Michael Mann, a climate professor and senior administrator at the University of Pennsylvania, even seemed to add a threat — that 'If Trump doesn't comply, we're in second amendment territory.' Insurrection aside, it is clearly time for the Supreme Court to do something about this. Despite a majority of justices harrumphing for years about these injunctions, lower court judges continue to issue them with abandon. In the meantime, presidents like Trump are looking at two years of litigation before they can make meaningful changes, including downsizing the government. For the Supreme Court, it has become madness, as emergency motions pile up every morning after executive programs are frozen overnight. The solution to chronic injunctivitis is simple: You give district judges a dose of clarity and tell them not to call you in the morning. Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School, where he teaches a course on the Supreme Court and the Constitution.
Yahoo
23-05-2025
- Politics
- Yahoo
Supreme Court Kills The Independent Agency. Trump Is King
The Supreme Court majority all but declared Thursday that it is ready to overturn a nearly century-old precedent meant to protect independent agencies from at-will firing by the President. It's the last brick to fall in the division between the President and the parts of the executive branch Congress created to be beyond his reach, turning the second branch of government into an all-powerful tool to be wielded by one man. Justice Elena Kagan, writing for the three dissenting liberals, dispensed with the usual niceties to upbraid her conservative colleagues for bending to President Trump's whims, and doing so in a two-page ruling on the emergency docket. The case stems from Trump's firing of members of the National Labor Relations Board and Merit Systems Protection Board, which he did knowing that it ran afoul of a 1935 Supreme Court precedent called Humphrey's Executor. The administration has aimed to get the case before the Court, betting that there are finally enough conservative justices bought into the idea of a supreme presidency to let him axe the last wall protecting critical independent executive branch agencies. On Thursday, the Court overruled the lower courts that had reversed Trump's firings in accordance with that Supreme Court precedent, hinting that the two agencies may not be protected from at-will removal. 'The impatience to get on with things — to now hand the President the most unitary, meaning also the most subservient, administration since Herbert Hoover (and maybe ever) — must reveal how that eventual decision will go,' Kagan thundered, anticipating a future, final decision after the Court hears arguments on the merits. In another sign of where the majority is leaning, it mentioned, out of the blue, that the Federal Reserve, for some reason, is uniquely protected from the President's whims due to its 'unique structure' and 'distinct historical tradition.' Experts have told TPM over the last few months that their only hope for the survival of independent agencies amid this onslaught from the administration is the right-wing justices' concern about Trump taking over the Federal Reserve, installing loyalists who would send the global economy into a tailspin. But the Court is telegraphing that it will find a way, no matter how legally flimsy, to silo the Fed out of its coming deathblow to independent agencies. 'But then, today's order poses a puzzle. For the Federal Reserve's independence rests on the same constitutional and analytic foundations as that of the NLRB, MSPB, FTC, FCC, and so on — which is to say it rests largely on Humphrey's,' Kagan wrote, citing the Court's precedent protecting these members from at-will removal. 'So the majority has to offer a different story…' 'One way of making new law on the emergency docket (the deprecation of Humphrey's) turns out to require yet another (the creation of a bespoke Federal Reserve exception),' she added. 'If the idea is to reassure the markets, a simpler — and more judicial — approach would have been to deny the President's application for a stay on the continued authority of Humphrey's.' The majority further tipped its hand, she pointed out, by rationalizing granting Trump's stay request by saying that it would stop the members of the two embattled agencies from being fired and rehired as the litigation proceeds. But Kagan notes that the two lower courts, as they must while Humphrey's Executor still stands, reinstated the fired members. To allow the firings to stand, she wrote, is allowing the 'President to overrule Humphrey's by fiat.' She also thwacked her colleagues for their explanation of the balance of injuries, noting that the side of the agencies does not boil down to the fired members' interest in keeping their 'nifty jobs' but the interest of Congress to create agencies that the President cannot destroy. This case will bring the right-wing legal world closer than it ever could have imagined to a unitary executive, a previously unconceivably muscular presidency where the occupant of the Oval Office can reshape the entire executive branch in his image. Coupled with the Trump administration's annihilation of the civil service, the executive branch will become something much closer to a fiefdom, an extension of presidential power with few institutional guardrails. This was a guiding light of Project 2025, a plan realized in the aftermath of the first administration, when civil servants and non-toadies in the executive branch proved frustrating obstacles to Trump's vision. 'Today's order,' Kagan wrote, 'favors the President over our precedent; and it does so unrestrained by the rules of briefing and argument — and the passage of time — needed to discipline our decision-making.' 'I would deny the President's application,' she added. 'I would do so based on the will of Congress, this Court's seminal decision approving independent agencies' for-cause protections, and the ensuing 90 years of this Nation's history.' Read the ruling here:
Barnama
22-05-2025
- Politics
- Barnama
US Underscores Longstanding Defence Cooperation with Malaysia at LIMA'25
In an exclusive interview with Bernama at the sidelines of Langkawi International Maritime and Aerospace Exhibition 2025 (LIMA'25), US Ambassador to Malaysia Edgard Kagan highlighted the strong military-to-military collaboration between the two countries. LANGKAWI, May 22 (Bernama) -- The United States (US) is committed to further strengthening its defence cooperation with Malaysia, which it regards as a long-standing and valued security partner in the region. Kagan also stressed that Malaysia's sovereignty, prosperity and independence are aligned with US strategic interests in the Indo-Pacific and affirmed that Washington is ready to support Kuala Lumpur in areas deemed necessary. 'This includes cooperation between our Coast Guard and the Malaysian Maritime Enforcement Agency, and also with the Ministry of Home Affairs and Royal Malaysia Police. We think it's a very good story,' he said, adding that the US has been a steadfast partner of Malaysia since its independence. He said the US, while satisfied with the level of bilateral cooperation on a broad range of security issues, is keen to enhance joint capabilities in response to evolving regional threats. He also acknowledged remarks by Defence Minister Datuk Seri Mohamed Khaled Nordin regarding the importance of joint efforts to counter foreign encroachments into Malaysian territory and waters. '… we are committed to working with Malaysia to the extent that Malaysia wants to make sure that Malaysia has the tools and the means to be able to assert its own sovereignty. 'We have 14 exercises every year between our militaries. We have an extraordinary level of cooperation. (There are) A lot of Malaysians who go for training and study in the US, (and) Americans who come to Malaysia. We think this is part of what gives our forces the ability to work together to face common threats,' he added. Kagan also emphasised the importance of shared values in defending international rules and norms, especially in the face of increasing maritime tensions. 'We can work together to deal with common threats, including those countries which don't respect international rules and norms, that don't abide by the UN (United Nations) Convention on the Law of the Sea (UNCLOS), that don't respect Malaysia's sovereignty,' he said. -- MORE LIMA'25-US AMBASSADOR 3 LANGKAWI He also pointed to the increasing sophistication of joint exercises between the two nations, including the participation of Australian forces and unprecedented operations spanning both Peninsular Malaysia and Borneo. 'We had, for the first time, an airdrop, a joint airdrop, where aircraft took off from Peninsular Malaysia and dropped paratroopers in Borneo, in Sabah. So, I think all that reflects the growing complexity and sophistication of what we are trying to do together,' he added. Moving forward, Kagan said the US is keen to deepen cooperation in emerging domains such as cybersecurity, unmanned aerial vehicles (UAVs) and sustainable aerospace solutions. 'We think there's a lot of potential in those areas. First of all, it's interoperability. Whatever the technology is, we think it's very much in our interest and we hope it's also in Malaysia's interest, that we have an ability to work together,' he said. He cited the US provision of ScanEagle UAVs to the Royal Malaysian Navy as an example of successful technology transfer aimed at improving maritime domain awareness. -- MORE LIMA'25-US AMBASSADOR 4 (LAST) LANGKAWI 'But also, there's making sure that our forces know how to best use the technology and have an understanding of what each other's strengths and capabilities are,' he said while praising the professionalism and skills of the Malaysian Armed Forces. Highlighting the strong US presence at LIMA'25, Kagan said that although adverse weather had affected a planned aerial demonstration, the US' showcase reflects the depth of its military engagement in the region. 'It (the aerial demonstration) was going to include two B-52s (bombers), 10 aircraft flyby of F-18s and an E-2D off the USS Nimitz, which was in the area and also two F-18s, which did do a flyby, a low-level pass. All that had to be scratched because of the weather, other than the two F-18s,' he said. Nevertheless, he said several key platforms remained on static display, including the F/A-18 Super Hornet, MH-60, C-130 and C-12 aircraft. 'We think it (not only) reflects both the breadth and the depth of the US military engagement with Malaysia, but also shows that we're sharing and bringing to bear a lot of our different technologies,' Kagan said. Reflecting on LIMA'25, Kagan described the exhibition as a critical platform to reaffirm US support for Malaysia's defence aspirations and regional leadership. 'It's in our interest to find ways in which we can do more things together. We think that's good for the US, we also believe it's good for Malaysia. We are very appreciative of how much support Malaysia has put into strengthening the security cooperation in recent years,' he added. -- BERNAMA BERNAMA provides up-to-date authentic and comprehensive news and information which are disseminated via BERNAMA Wires; BERNAMA TV on Astro 502, unifi TV 631 and MYTV 121 channels and BERNAMA Radio on FM93.9 (Klang Valley), FM107.5 (Johor Bahru), FM107.9 (Kota Kinabalu) and FM100.9 (Kuching) frequencies. Follow us on social media : Facebook : @bernamaofficial, @bernamatv, @bernamaradio Twitter : @ @BernamaTV, @bernamaradio Instagram : @bernamaofficial, @bernamatvofficial, @bernamaradioofficial TikTok : @bernamaofficial
